(dissenting).
I concur in all respects with the majority opinion except as to Issue III, where I respectfully dissent. Under Issue III, the question is whether to include or exclude both the foster care children and the income in respect to them for food stamp purposes. To include both or exclude both —that is the question.
It was wrong for Rios to include the foster care children but exclude the income in respect to the children for food stamp purposes. I agree with the majority that it was error for the trial court to provide Rios a choice of exclusion of both or inclusion of both children and income.
I disagree with the majority where it supports a rule of exclusion of both foster care children and income for food stamp purposes. In the absence of clearly expressed congressional intent requiring exclusion, I would require inclusion of foster care children and income in respect to them for food stamp purposes. This is in accord with 7 C.F.R. 11273.9(b)(2)(ii) which directs the states of this nation to require inclusion of foster care payments as unearned income, and state implementations of said regulations. The majority opinion submits that two “well reasoned” very recent federal district court decisions indicate requiring such inclusions in unearned income is contrary to congressional intent as expressed in the Food Stamp Act (7 U.S.C. § 2014).
The majority opinion also states:
We cannot include such payments in considering Rios’ food stamp eligibility without undercutting the purposes of the food stamp program. The foster care payments are for the benefit of the foster children, and the food stamps for the Rios household. Food stamps are unnecessary for the foster children, as their needs are taken care of by the government payments.... Two needs; two programs.
Common sense and logic indicate that the Rios children and the foster care children will sit down at the same table and eat the same food. The children will not be able to discern or distinguish the foster care food from the food stamp food or vice versa. Neither can we. To imply that we can or to make rules on the assumption that we can simply promotes fiction over fact.
Courts should do whatever possible to reduce or eliminate arbitrary and unreasonable classifications such as we have in this case, especially in the absence of clearly expressed congressional intent requiring exclusion of facts. In both the long and the short run, the best interests of all children will be served thereby.
*764Accordingly, I would remand to the trial court to require the inclusion of both the income and the foster care children for food stamp purposes consistent with this dissent.
I am authorized to state that MILLER, J., joins in this dissent.